U.S. v. Harper, 2016 WL 2638364


A dissenting judge in the U.S. 9th Circuit Court of Appeals has finally written a scathing and accurate dissent in a case and commented on repeated jurisprudential clashes between the court and the U.S. Supreme Court. Harper v. Lee 2016 WL 2638364. Other 9th Circuit judges have previously dissented in opinions within the boundaries of submitted cases, but not always challenging decisions of the circuit in the language of Judge Ikuta in Harper.

For the last decade the 9th Circuit, invoking habeas corpus on Constitutional issues, has repeatedly reversed state supreme courts within its federal jurisdiction, but the Supreme Court has reversed that court more than any other federal appellate court. During the described era the Justices stripped 9th Circuit jurisdiction in state Fourth Amendment issues and in state parole hearings: “state parole is none of your business.”

In Cavasos v. Smith, 132 S.Ct. 2 (2011) a 9th Circuit habeas panel reversed a state court jury conviction two times on grounds the defense presented a better case at trial. Reversed each time by the Supreme Court, instead of the panel writing another opinion, an unknown person contacted the Governor’s office. In two weeks Governor Brown granted the defendant clemency.

In 1996 a frustrated Congress enacted legislation restricting federal habeas corpus intervention by all federal courts on state court judgments. In the Anti Terrorism & Effective Death Penalty Act, a federal court could only overrule state court decisions unsupported by “clearly established” Supreme Court law-not local precedent. Prior to the statute, the 9th Circuit on habeas corpus had reviewed state decisions de novo under rules on direct appeal.

Confronted by the statute, Ninth Circuit judges no longer allegedly relied on their own interpretation of the Constitution but introduced the Sixth Amendment right to counsel. The Supreme Court had already fulfilled the right of an accused to jury and counsel. The 9th Circuit invented a supplemental issue requiring “effective” counsel. These cases formed the majority of 9th Circuit reversals, each time panels criticizing defense counsel for ineffectively conducting an investigation or trial. Almost every case involved the death penalty, and confirmed the objective of a majority of 9th Circuit judges seeking to terminate capital punishment.

The 9th Circuit undertook another interpretation of “clearly established” Supreme Court decisions. In Batson v. Kentucky, 476 U.S. 79 (1986) the Supreme Court had held prosecutors could no longer peremptorily challenge potential jurors on grounds of race. The 9th Circuit immediately applied the case to overrule a state court by asserting the prosecutor had challenged a potential black juror. The prosecution sought certiorari of the decision, and the Supreme Court reversed with the comment : “The Ninth Circuit court substituted its own opinion.”

Frequent reversal of 9th Circuit habeas corpus opinions of state cases compelled the Supreme Court to eventually require federal courts to “defer” to state courts. Despite the rule, the record of Supreme Court reversals continued and led several 9th Circuit judges to refer to their embarrassment year after year. Judge Ikuta wrote: “Judicial disregard for Supreme Court habeas jurisprudence is inherent in the opinions of the Court of Appeal for the Ninth Circuit here under review.” This language summarizes judicial disregard of the law. In one case a 9th Circuit judge criticized numerous state court “mistakes, ” ignoring the record of the 9th Circuit.

Concerned with the Supreme Court rule mandating “deference” to state courts, 9th Circuit judges discovered another method of reversing cases in habeas corpus. Statutory reference under AEDPA permits reversal only if the state court decision constituted an “unreasonable interpretation” of federal law or of the factual record. The word “unreasonable” is an abstract word, contingent on the facts and subjectively decided. This statutory interpretation requires federal habeas corpus review to merely conclude the state court decision “unreasonable.”As the Supreme Court said, “merely a substitution of opinion.”

The 9th Circuit found yet another alternative to reverse state court convictions under habeas corpus and apply the rules of direct review. After the state supreme court affirmed a conviction, the defendant filed habeas in federal court. The 9th Circuit allowed the district court to conduct hearings on evidence never submitted in state court nor alleged on appeal. The Supreme Court has discontinued this unfair process.

A federal district court judge, ignoring the Supreme Court and its repeated reversal record of the 9th Circuit, and oblivious to federal or state law, asked a habeas petitioner to rewrite his petition to argue the California death penalty unconstitutional. The U.S. Supreme Court and the California Supreme Court have both repeatedly rejected this argument for several years, the former as recently as two weeks ago denying certiorari. Even the 9th Circuit reversed the district court. Boyer v. Chapell, 793 F.3d 1092 (9th Cir. 2015).

Another federal district court judge, who probably never tried a criminal gang case, decided to overrule the California Supreme Court affirmance of a conviction in a case tried in 1985. Williams v. Davis, 2016 WL 1254149. Gang cases are obviously the most difficult for the prosecution. Witnesses fearful of retribution, immunized accomplices, witnesses who recant or testify inconsistently, and questionable identification. This judge granted habeas in a case 35 years old and impossible for the prosecution to retry when witnesses willing and able to testify have either died or unavailable.

In Williams, a single federal judge retrys a case, ignores a unanimous jury verdict, alleges the prosecutor withheld witness notes from the defense, and chastises the California Supreme Court opinion. The law thirty five years ago did not require pre trial prosecution discovery. And, according to the district court, the California criminal justice system is “dysfunctional.” Unfortunately, the judge forgot to mention this thirty five year old case does not include 9th Circuit reversals as relevant.

Reading Supreme Court cases reflects policy decisions of a majority, not the law. Many of these judges oppose the death penalty and have used excuses consisting of prosecution misconduct, ineffective assistance of counsel, voir dire challenges, and “lawyerly parsed” [Supreme Court] jury instructions, or penalty errors. The Supreme Court has tightened the habeas rules in criminal cases and Congress has attempted to limit federal jurisdiction. The Supreme Court should strip federal habeas corpus review comparable to their decisions on the Fourth Amendment and parole.

Granting habeas petitions not only affects the lives of victims, families and friends. Retrying a case several years after conviction often proves impossible. Incredibly, the attorney general who represents the state has made no comments on the 9th Circuit, more concerned with child truancy, and ignoring her commitment to serve four years while rying to get another job.

The governor, attorney general and the state legislature have done nothing to limit federal interference in California courts and the repeated hearings, release of inmates, delay and cost. The governor wants to spend billions on a train, the attorney general travels around the state soliciting votes, and the legislature more concerned about issuing drivers licenses increasing traffic the City of Los Angeles tries to control. Although not entirely alone, at least one voice is crying in the wilderness.


Ayala v. Davis, 2016 WL 612002 (C.A.9) on remand from Supreme Court

 Ayala v. Davis illustrates another 9th Circuit device to stall imposition of the death penalty evidenced by its per curiam opinion written by the same judge who has never affirmed a death penalty conviction in state courts.

In Davis v. Ayala,135 S.Ct. 2187 (2015) the Supreme Court rejected a Batson motion granted by the 9th Circuit decision in Ayala v. Wong, 756 F.3d 656 (2014). On remand, the Justices did not address other Ayala claims, including a claim of state violation of the Vienna convention. So, now the 9th Circuit on remand had to review a claim not resolved in its original reversed opinion. And critics ask why executions take so long.

The district court had denied Ayala’s Vienna motion but neither the 9th Circuit nor the Supreme Court ruled on it.  Had the 9th Circuit found in favor of Ayala in its per curiam opinion  (2016 WL 61002), another appeal to the Supreme Court would have been filed by the state. Fortunately, the 9th Circuit denied the Vienna claim with knowledge the Supreme Court had already denied similar claims in state courts.

This case is not an unusual 9th Circuit device for delay.  On appeal from the district court, leave some claims without decision and rule on other claims.  If the Supreme reverses the claims asserted, it cannot rule on claims not addressed at the 9th Circuit level and require remand and resolution, another hearing-and possible appeal again to  the Supreme Court.

For a discussion of the original case, see above, Davis v. Ayala, 135 S.Ct. 2187 (2015).

Jones v. Davis, 806 F.3d 538 (9th Cir. 2015) & Deck v. Jenkins, 2016 WL 518819 (C.A. 9)

A federal  district court judge in Jones decided the California death penalty was unconstitutional on grounds it violated the Eighth Amendment.  The judge ruled, citing no case, after encouraging the petitioner to amend his original petition which had not alleged any Eighth Amendment violation.  On appeal, the 9th Circuit panel cautiously reversed the district court pursuant to a Supreme Court decision disallowing new Constitutional rules by federal appellate courts on collateral  review.  The 9th Circuit has ignored that rule indirectly for over a decade.

The 9th Circuit appellate panel in Jones cited Teague v. Lane, 489 U.S. 288, a case holding that “federal courts may not consider novel constitutional theories on habeas review. That principle serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered.” Sawyer v. Smith, 497 U.S. 227.The 9th Circuit has reversed so many state court cases by citing its own precedents, and ignoring or distinguishing Supreme Court decisions, that its panel decision in Jones was a surprise.  The panel reversed the district court.

But apparently other 9th Circuit panelists did not agree, and in Deck v. Jenkins the 2-1 majority wrote one of the worst opinions ever-and that is saying a lot. In Deck, six judges, responding to denial of an en banc hearing, wrote a scathing dissent contending the majority panel reversal of the state court decision disrespected Supreme Court decisions, particularly Davis v. Ayala, 135 S.Ct. 2187 (2015).  In Davis the Supreme Court specifically lashed the 9th Circuit verbally for ignoring AEDPA. According to the Supreme  Court, federal habeas corpus exists only to review the failure of the state court procedural machinery.  Never mentioned by ;the panel majority in Deck.

The 2-1 majority in Deck contended somehow Brecht v. Abrahamson, 507 U.S. l619 undermined AEDPA.  Aside from the dissenting judges in Deck, how this decision  could possibly occur was repudiated by a footnote in the dissenting opinion.  The late Justice Scalia citied fourteen cases of Supreme Court reversals of the 9th Circuit for failing to apply AEDPA.

This decision in Deck, surely to be granted cert., ought to be the final straw for the Supreme Court in allowing 9th Circuit jurisdiction in habeas cases from state courts.


Shirley v. Yates, 2015 WL 7422606 (C.A. 9)

A 9th Circuit panel decision, written by a judge who had never tried a criminal case and who allegedly read the voir dire transcript of a trial, tried to find some reason for reversal. (in fact, he opened the decision with an obvious dislike of the sentence imposed on the defendant for an unarmed eighty dollar second degree robbery harming no one.)   Unable to find any state trial court error, no improper jury instructions on the merits or the sentence, counsel was not ineffective, no jury misconduct, no prosecutorial misconduct or failure to disclose exculpatory evidence, he focused on voir dire.  He wrote an academic hair splitter, lawyerly parsed, and unintelligible opinion frustrating justice by reversing the California Court of Appeal and causing a guilty man freedom. In the absence of a rehearing,  the panel decision will cause another Supreme Court reversal to increase the 9th Circuit record in reversals.

The evidence in the case supported the jury verdict and denial of a motion for new trial.  The California Court of Appeals affirmed the judgment.  So did the district court on habeas corpus.  Not the 9th Circuit. Once again a 9th Circuit panel abuses its habeas authority, disposes of AEDPA on unsupported grounds, and ignores the Supreme Court warning to adopt the judgment of the trial court judge in a Batson hearing. A guilty man escapes on the grounds of an alleged prosecution challenge of a black juror.

The Supreme Court has repeatedly written that the issue of voir dire and the use of peremptory challenges depends on an intangible variety of factors other then race.  Conduct, demeanor, uncertainty, language, and a judgmental sense incapable of explanation.  What the 9h Circuit does is compare the questions of white jurors with those of black jurors.  Race does not necessarily result in the exercise of a challenge, and an appellate court reading a cold record cannot possibly determine factors the prosecutor considered at the trial.

The one person who can judge the rationale of a prosecutor in excusing a juror is the trial court judge.  A neutral, the trial judge can sense a reason for the dismissal or not.  The Supreme Court has stated the trial judge decision in a Batson hearing is dispositive.  In this case the trial judge supported the prosecutor.The 9th Circuit panel who never saw any of the jurors, never heard them, tried to compare the questions with other jurors.   The questions can be exactly the same and one juror accepted and the other excused unrelated to race.

Voir dire is no different than life.  We like some people and dislike others.  Personality conflicts are inexplicable  The voice: pitch, acute, abrupt,  indecisive, abusive, whatever.

And, the 9th Circuit has found a way to evade AEDPA.  The panel just holds the state court decision is an “unreasonable application of federal law.”  No explanation.  That enables  the panel to review on an appellate basis instead of collaterally on habeas.

For additional biefs on peremptory challenges, see other cases in that category.

For a complete discussion of 9th Circuit cases, see “Disorder in the Court” written by Judge Waddington.  Amazon.com

Rios v. Lynch, 2015 WL 7729563 (C.A.9)

Once again, the 9th Circuit has written an opinion which could easily be described as inconceivable, or even more so in less polite terms.  Several years ago the 9th Circuit, over four dissents on rehearing, was reversed by the Supreme Court in another  case written in a scathing per curiam opinion; Gonzales v. Thomas, 547 U.S. 183.  The en banc 9th Circuit in Thomas had held the immigration laws applied to a family as a “social group” eligible for asylum.  The Supreme  Court told the 9th Circuit in Thomas to allow the BIA to make those kind of decisions, and the role of the appellate court is not first review but appellate review.  The harshness of Supreme Court language in Thomas was devastating. All nine justices concurred.

The 9th Circuit panel in Rios had  the same factual issues as in Thomas: approval of the use of a family as a “social group” in compliance with BIA “withholding of removal Rules.”  The panel cited – in italicized letters- the Thomas opinion (9th Circuit reversal) was “vacated on other grounds.”  To put it mildly, this is inaccurate.  In fact, Thomas was not vacated “on other grounds” but reversed on exactly the same grounds as the 9th Circuit held in in Rios. The family is not a “social group.”

Rios had sought asylum, CAT, and withholding of removal, but abandoned the first two grounds on appeal.  The evidence supporting all three grounds was identical. If this case is not reheard, the Attorney General will certainly seek Supreme Court intervention.

Immigration: two cases: Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015; Rodriguez v. Robbins, 803 F.3d 502 (9th Cir 2015)

The 9th Circuit is the best jurisdiction for illegal aliens to gain entry to the United States or impede deportation. In Rodriguez the panel held the government must hold bond hearings for those detained awaiting entry six months or longer.  To retain individuals, the federal government must present clear and convincing evidence the alien will not flee or present a danger to the public.  Good luck to the U.S. agents who must prove two negatives.  These Agents  must now waste their time trying to find out who these detained people are.  Providing  or finding information  about them, or using the wrong name or lying, is not unusual.

In the last few years Central American women and children swarmed into the United States.  The government, overwhelmed by the crowds, could hardly determine asylum in an already bulging caseload..  To handle this crowd, the district court certified a class.  How this decision satisfied Rule 23 is known only to the 9th Circuit-who approved the class and also sub classes.

And the court decision is sympathetic to those people whose alleged relatives hold numerous occupations.  What is the record of Hispanic felons  in state prisons.

Now, in a civil case (except for civil trials), we must apply the Constitution for criminal cases.  There is no end  to the flagrant decisions rendered by the 9th Circuit..

Dimaya v. Lynch,

The IJ  ordered deportation of a Philippine native who had been convicted of burglary in two trials and sentenced accordingly for a “crime of violence” under federal law. In the 9th Circuit, burglary is not a “crime of violence” according to another academic hair splitting decision of a three judge majority panel. Excellent dissent.

Mullenix v. Luna, 136 S.Ct. 305 (2015)

(Not a 9th Circuit case but relevant thereto)

When 9th Circuit judges read this Supreme Court  case, their despair will be overwhelming. No longer can the 9th Circuit, who know nothing about police street work, continue their anti law enforcement record on summary judgments in civil rights cases.

In a per curiam opinion the Justices reversed the 5th Circuit and upheld the doctrine of qualified immunity for police officers. In the all too common police chase, the officers pursued a car at 80 to 100 miles an hour as one Leuja, a fugitive from an arrest warrant and intoxicated,  raced through the streets.  On the police radio he threatened to shoot the officers if they did not terminate the chase.

In an attempt to intercept the driver with spikes, the officers laid down a set on the road they knew the driver would travel. As the car neared the spikes, one of the officers decided to shoot at the car engine in an attempt to stop it.  He drove to an overpass, and when the driver drove underneath, the officer fired his rifle. The car hit the spikes, rolled over, and killed  the driver.  At the  trial, the estate representative alleged use of police excessive force. The court denied the officer qualified immunity on his motion for summary judgment.  The 5th Circuit affirmed but the Supreme Court reversed.

The Supreme Court conceded these cases are difficult but all depend on the reasonableness of the officers’  conduct.  Citing Brosseau v. Naugen, 543 U.S. 335 ((2004), a case reversing the 9th Circuit, the Justices held the trial court must consider  all the facts and the reasonableness of the officer’s conduct.  This Court  knows spikes are not always effective and often place the officers in a dangerous position.  Given all the facts, the officer at the overpass selected an alternative to eliminate the chase and protect the other officers. Immunity granted.

Zapien v. Martel, 2015 WL 6843241 (C.A.9)

Prosecutors are required to disclose exculpatory or impeaching evidence to defense counsel in criminal cases before trial.  The cases are fact specific, and Zapien is no different.  The important distinction of this case is the decision by a three judge 9th Circuit panel to adhere to habeas corpus restrictions set by the Supreme Court.  The panel cites AEDPA, adopts deference to the state court decision,and treats the case as habeas, not appeal.  Would that all judges on the 9th Circuit adhered to this decision.

Jones v. Davis, 136 S.Ct. 1

In California death penalty case Jones v. Davis, several troubling issues arose. The petitioner at the habeas corpus hearing in district court alleged the California legal system excessively delayed death penalty convictions violating the 8th Amendment prohibiting cruel and unusual punishment. Despite the prior California Supreme Court ruling to the contrary on appeal, the district court judge ignored the merits of the petition and expressed his concern the California death penalty was unconstitutional on a different ground. He allowed petitioner four days to file an amended petition to assert a “new claim” of systemic dysfunction of the state court. The petitioner complied.

After a hearing on the amended petition, the district court judge found the California death penalty post conviction process unconstitutional on 8th Amendment grounds. The court cited no precedent, including 9th Circuit decisions having been overruled by the Supreme Court in almost every death penalty case in the last decade. The conduct of the district court, ignoring the death penalty issue written by the petitioner in the original petition, and requesting an amended petition on other grounds he suggested, is a serious question. In effect, the court ordered petitioner to file a claim of unconstitutional conduct by California courts without citing any judicial precedent or statute for systemic dysfunction and in conflict with Supreme Court decisions. Nothing more than a personal opinion, not legally sanctioned. The state appealed to the 9th Circuit.

The 9th Circuit panel wrote they were compelled to grant the appeal by the State of California, and reversing the district court order granting habeas corpus, on grounds the Supreme Court had previously filed a case prohibiting appellate courts from writing a “new rule” on habeas corpus appeals. Rarely has the 9th Circuit followed this rule over the years but the significance of the Jones case probably affected the court worrying about certiorari to the Supreme Court. The Justices have repeatedly denied 8th Amendment claims the death penalty qualifies as “cruel and unusual punishment.”

The second troubling issue arises from footnote 2 of the panel opinion suggesting petitioner seek review of the claim elsewhere as asserted in his own petition or the amended petition recommended by the district court. The options included the state court. Yet the panel opinion, after extensively discussing its inability to write a new rule on habeas petitions, and having contended to rule otherwise would more cause more delay, nevertheless suggests petitioner try “other means” in the footnote. This interpretation implies either the petitioner return to the California Supreme Court for reconsideration on the issue of systemic dysfunction, or citizens file an Initiative.

The panel could have foreclosed petitioner from proceeding in federal court by citing the federal Anti Terrorism and Effective Death Penalty Act (AEDPA) requiring state prisoners to exhaust all post conviction claims in state court before filing habeas in federal court. The petitioner had not complied with the statute in district court, and never cited AEDPA to the panel. In fact, petitioner conceded he did not file either the original or amended petition in state court mandated by the exhaustion rule. The panel circumvented this issue having decided petitioner had sought a “new rule” held by the Supreme Court. By suggesting petitioner could continue his quest for challenges to the death penalty, he could conceivably go back to state court and exhaust all his claims as required by law and, if the claims were denied, come back to the district court. This incongruous recommendation defies understanding.

Undoubtedly petitioner will seek certiorari in the Supreme Court, surprising the Justices that the 9th Circuit had denied a petition for habeas corpus in a death penalty case. Absent a rehearing, the 2-1 majority in the 9th Circuit opinion will survive in Washington.

The Jones case is obviously not the first constitutional challenge to the death penalty per se on grounds of cruel and unusual punishment and despite repeated denial by the Supreme Court, but the decision does expose the California state government to criticism for its indolence, in part because the Governor, Attorney General and the Legislature will do nothing to clarify or restructure the legal system. The Governor has ignored any congestion in post conviction proceedings and merely cut the judicial budget. The Attorney General personally opposes the death penalty and is busy with the important alternative of child truancy and abandoning her promise to serve as Attorney General for four more years. The Legislature has not held a committee hearing to review post conviction remedies, and refused to adequately fund the lawyers who write habeas corpus briefs and those who do appellate work in death penalty cases.

The state government is not alone. The federal government enacted legislation in 1996 to cabin the role of federal courts, particularly the 9th Circuit, in the AEDPA. The statute, repeatedly evaded by the 9th Circuit whose panels have granted habeas corpus despite the rulings of the California Supreme Court. The latter has upheld almost all death penalty cases on overwhelming evidence and not by academic hair splitting and ineffective assistance of counsel decisions written by 9th Circuit panels. Congress should tighten AEDPA to eliminate federal rulings on state habeas as enacted in 1996.

The 9th Circuit recently requested the state supreme court to adopt a statute of limitations rule identifying the amount of time a state prisoner must file a petition for federal habeas corpus after a state judgment is affirmed. The state supreme court has not replied. The 9th Circuit justifiably warrants a “bright line” for state habeas limitation rules in order to determine its own statute of limitations filings in federal courts.

California law allows petitioner to file habeas three times independently in state court: the Superior Court; the Court of Appeal; the California Supreme Court. Assuming all these courts deny the petition, a petitioner can then seek certiorari in the Supreme Court. If denied, then file in the district court; if denied; appeal in the 9th Circuit; if denied, back

to the Supreme Court.

All these California laws can be changed. There is no need for the state supreme court to hear habeas corpus on the same ground it just rejected in direct appeal. The state Attorney General, who represents the state, endorses all these identical options to assure a defendant convicted by a unanimous jury, a motion for new trial denied, and an automatic appeal to the California Supreme Court alleging violation of Constitutional rights, are protected. These endless appeals are unnecessary.

Habeas petitioners invoke two jurisdictions. The claims are identical and in some cases the federal court must return the case to the state court to exhaust local claims. After the state court rules, the petitioner files an amended petition in federal court. Two jurisdictions on the same case causing incessant delay.The amended petition in Jones complained about systemic delay in his case, and the judge ruled on his own policy. But not a word in his opinion about the 9th Circuit who have overruled the California Supreme Court in almost every death penalty case during the last decade. On policy, masked in judicial rhetoric.


Lawrence Waddington is a retired judge of the Los Angeles Superior Court and author of recently published “Disorder in the Court” at Amazon.com. He also edits the 9th Circuit blog titled “-The 9the Circuit Watch.”